Break Up the Harvard/Yale Monopoly on the Supreme Court

05/18/2010 10:11 am ET | Updated May 25, 2011

The Elana Kagan nomination has focused attention on the current Harvard/Yale monopoly power over the source of judicial nominees for the U.S. Supreme Court. It is elitist and foolish to think that the best lawyers only come from Harvard and Yale. Many talented students cannot attend prestigious Ivy League universities because of financial and travel barriers.

At the time of the Sonia Sotomayor nomination, President Obama was criticized by some Senators when he spoke about his desire to select empathetic nominees for the Court. I agree with President Obama that Supreme Court Justices should be individuals who display a deep concern about the impact of their decisions on people's lives and opportunities. However, I believe that empathy is a quality that is informed by geographic diversity not just by the usual race, ethnicity, religion, and gender categories.

Do Justices drawn from only Harvard and Yale realize that in Texas you never ask a cattleman how many head of cattle graze on his ranch? Can the Harvard and Yale elite truly understand why an Ozark hunter who lives in the same hollow that his Scots-Irish ancestors cleared in the 1830s is a fierce defender of property rights? Can these Justices comprehend that the high tech industry in Silicon Valley is more connected with Asia than the Northeast Amtrak corridor?

Here is my proposal to break up the Harvard/Yale monopoly on our Supreme Court. Article II, Section 2 of the Constitution of the United States provides that the Senate must "advise and consent" on the President's nominees for the Supreme Court. As part of the "advise and consent" power, the Senate could require that nominees be selected on a rotating basis from each of the twelve federal judicial circuits. This would ensure that all regions are eventually represented on the Court. This does not mean that the nominees should be restricted to the federal appellate bench. It would just mean that the nominees have to reside in the relevant circuit per the rotation schedule.